Date: 20010509
Docket No.: IMM-2205-00
Neutral Citation: 2001 FCT 448
Ottawa, Ontario, this 9th day of May, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
SYED MUHAMMAD AMIN and NAVEED IQBAL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1- This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated April 3, 2000, which held that
the applicants are not Convention refugees pursuant to subsection 2(1) of the Immigration Act.[1]
2- Syed Muhammad Amin, 62 years of age, and his son Naveed Iqbal, 21 years, have joined their claims from the very beginning. They submitted a common written narrative which was signed by Mr. Amin.
3- The applicants, citizens of Pakistan, arrived in Canada on September 12, 1997 and claimed Convention refugee status on September 24, 1997.
4- The applicants based their claim on a well-founded fear of persecution in Pakistan on the grounds of political opinion and membership in a particular social group, namely the Mohajirs in Pakistan which are supporters of the Muttahida - a.k.a. Mohajir - Quami Movement- Altaf Hussain faction, hereinafter the MQM-A. The applicants were supporters but not members of the said movement.
5- On April 3, 2000, the Convention Refugee Determination Division, hereinafter the CRDD, determined that the applicants were not Convention refugees. The CRDD found no persuasive, reliable, or trustworthy evidence which shows that the applicants, as Mohajirs, have a well-founded fear of persecution on Convention grounds if they were to return to Pakistan.
6- The applicants were granted leave for judicial review on November 20, 2000 and their application is based on the following two issues:
1. In making its ruling regarding joinder of the claims, did the CRDD make a reviewable error?
2. Did the CRDD otherwise err in law, breach natural justice, or base its decision on an erroneous finding of fact made in a perverse or capricious manner, or without regard to the material before it?
7- In such cases the standard of review is twofold. Firstly, all questions of law determined by the CRDD are governed by the standard of correctness, as stated by Bastarache J. in Pushpanathan[2]. Secondly, all factual findings are regulated by the patently unreasonable standard as stated by Décary J.A. in Aguebor:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.[3]
8- Having established the standards of review in the case at bar, I will know address the two issues raised by counsel for the applicants. The first is whether in making its ruling regarding joinder of the claims, did the CRDD make a reviewable error?
9- Subsection 10(1) of the CRDD Rules[4] provides for the joint hearing of two or more claims where the Assistant Deputy Chairperson or coordinating member believes that no injustice is thereby likely to be caused to any party. Subsection (3) of the said Rules provides that on application by a party, or on the members' own motion at the time of the hearing, members may order claims to be heard separately, "...where the members believe that hearing the claims or applications jointly is likely to cause an injustice to any party."
10- The issue simply stated is whether joinder of the claims has likely caused an injustice to any party.
11- The CRDD dismissed the applicants' motion for separate hearings with the following reasons:
After weighing the evidence, the panel ruled that the claims be heard jointly given that all three claimants (a) belong to the same family, (b) their claims seemed to arise from their fear of persecution by reason of political opinion, although they had different party affiliation, (c) the necessity to cross-examine one party over the testimony of the other might arise, and (d) they all travelled together in Canada.[5]
12- The applicants argue that the CRDD failed to consider the issue of possible injustice to the parties, and as a result committed a reviewable error.
13- The applicant, Mr. Amin, alleges that he would be emotionally distraught if he had to testify in the presence of his son Shiraz. The applicants further claim that the animosity between father and son produced a situation in which a joint hearing was inherently prejudicial and unjust to the applicants.
14- To support their contention, the applicants submitted the report of Dr. Baruch, a psychiatrist that examined the applicant Mr. Amin. A review of the report of the psychiatrist reveals the following:
...I think it would be extremely difficult for Mr. Amin to be able to testify on his own behalf. Another factor contributing to this difficulty, is the fact that he is in the presence of his son from whom he is alienated.[6]
The psychiatrist seems to suggest that Mr. Amin, the father, would have difficulty testifying in any event, and the fact that he is in the presence of his son, from whom he is alienated, is but another factor contributing to this difficulty. Even if we were to concede that the joint hearing of the claims may cause the applicant, Mr. Amin, to suffer additional anxiety, in my view, this is not sufficient to establish that an injustice is perpetrated on him. This is particularly so if one considers the nature of the discrepancies in the testimony upon which the CRDD based its findings of lack of credibility and trustworthiness. I agree with the respondent that emotional distress and inability to concentrate would not explain away the major inconsistencies and implausibilities in the applicants' testimony and evidence. I refer specifically to their political involvement (or lack thereof), in Pakistan. Even without the testimony of the estranged son (Shiraz), the CRDD found major inconsistencies and implausibilities between the applicants, which findings, I believe, were open to the CRDD.
15- For the above reasons I am satisfied that the applicants have failed to show how the joinder of the claims have caused an injustice for the applicants. I therefore find that the CRDD committed no reviewable error in hearing the claims jointly.
16- The second issue is whether the CRDD erred in law, breached natural justice, or based its decision on an erroneous finding of fact made in a perverse or capricious manner, or without regard to the material before it.
17- I find that the CRDD was justified in its conclusions. I find that upon reviewing the evidence, the applicants have not discharged the burden of showing that the inferences drawn by the CRDD could not reasonably have been drawn. I am of the opinion that the conclusions of the CRDD are supported by the evidence and that, taken as a whole, they enable the CRDD to decide as it did.
18- For a refugee claim to be successful, applicants must establish, through credible and trustworthy evidence, a nexus between their fear and any of the grounds of persecution set out in the definition of a Convention refugee.
19- The applicants' claim is based on a well-founded fear of persecution in Pakistan on the grounds of political opinion and that they are supporters of a particular social group namely the MQM-A in Pakistan. The evidence of the applicants is that they were supporters of the MQM-A, and were at risk due to this support and due to their family connection with Mr. Amin's eldest son, Nasir, who was a member of the MQM-A.
20- The applicants contend that the CRDD misconstrued the evidence in characterizing the applicants as having a "deep involvement in the MQM-A and a high level of activity". The applicants contend the CRDD erred in finding that they had inadequate knowledge about the MQM-A and the political situation in Pakistan given their level of involvement. The applicants state that their involvement consisted of supporting MQM-A in general. The applicant Iqbal was involved in helping friends to organize people and sending the MQM-A message to people, helping to collect funds, helping at functions such as letters or speeches. He approached people, distributed pamphlets, attended rallies. The applicant, Mr. Amir, contends he took part in the last federal elections in Pakistan "but silently in the background, not in the open". He told people what the MQM-A program or agenda was. He stressed "our survival depends on that".
21- I find that the applicants political activities as described are totally consistent with the CRDD's characterization of "deep involvement and a high level of activity". At a minimum, such a finding is reasonably open to it on the evidence. It is my view that it was reasonable for the CRDD to draw a negative inference from the applicants' lack of knowledge of the politics in Pakistan in general and of the MQM-A in particular.
22- The CRDD drew a number of negative inferences from discrepancies and implausibilities in the evidence and testimony of both applicants that I find were reasonably open to it. These inferences led the CRDD to determine that both applicants were purposely misleading the panel with regard to their actual political activities in Pakistan, in general, and their actual involvement with the MQM-A in particular.
23- The CRDD found no persuasive, reliable or trustworthy evidence to establish a nexus between the applicants' fear of persecution in Pakistan and their identity as Mohajirs and members of the MQM-A.
The panel, on the other hand, is willing to accept that the claimants come from a Mohajir background, but that is as far as the panel is willing to go with regard to these two claimants' credibility. However, the panel finds no persuasive, reliable, or trustworthy evidence which shows that Mohajirs, as a group, are systematically persecuted, within the meaning of the Convention refugee definition. Furthermore, the panel finds no persuasive, reliable or trustworthy evidence which shows that Mr. Iqbal's and Mr. Amin's identify as Mohajirs gives rise to a well-founded fear of persecution if they were to return to Pakistan today. In fact, it was Mr. Iqbal's evidence that he had never been an official of the MQM-A.[7]
It is my view that this determination of no nexus to the grounds set in the Convention was reasonably open to the CRDD on the evidence before it.
24- The principle enunciated by Mr. Justice MacGuigan in Sheikh is applicable in this case:
[E]ven without disbelieving every word an applicant has uttered, a [panel] may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim (...). In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony.[8]
25- Applying Sheikh to this case, the CRDD found that, having determined that the applicants were not credible, it rejected their claims. It is well established that this Court should not interfere with findings of fact and the conclusions drawn by the Refugee Division unless the Court is satisfied that the Refugee Division based its conclusion on irrelevant considerations or that it ignored evidence.
26- The applicant argues that the CRDD disregarded or misconstrued the applicants' evidence regarding torture in the May 1997 incident, the applicants' connection to the MQM-A, the timing of Mr. Iqbal's trip to Singapore, and in so doing committed a reviewable error.
27- I have carefully reviewed the evidence and I am satisfied that, on the whole, the CRDD did consider the evidence before it and drew inferences and made reasonable findings that were open to it.
28- With regards to the applicants' submissions that the CRDD inappropriately determined that the applicants' delay in making their application for Convention refugee status was not consistent with their subjective fear of persecution, again, on the evidence, I find that such a finding is reasonably open to the CRDD, insofar as the delay is not the sole decisive factor in the CRDD's decision. I am satisfied this is the case.
29- Having considered and reviewed the strengths and limitations of the evidence before the CRDD, I find the CRDD committed no reviewable error.
30- For these reasons the application for judicial review is dismissed.
31- There is no question of general importance which would require certification.
ORDER
THIS COURT ORDERS that:
1. The application for an order setting aside the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated April 3, 2000, which held that the applicants are not Convention refugees pursuant to subsection 2(1) of the Immigration Act, is dismissed.
"Edmond P. Blanchard"
Judge
|
Immigration Act, R.S.C. 1985, c. I-2 2. (1) In this Act, "Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, (...). |
Loi sur l'immigration, L.R.C. 1985, c. I-2. 2. (1) Les définitions qui suivent s'appliquent à la présente loi. « réfugié au sens de la Convention » Toute personne : a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, [...]. |
[2] Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R., 982, at paragraph 50.
[3] Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732.
[4] SOR/93-45, Convention Refugee Determination Division Rules; DORS/93-45, Règles de la section du statut de réfugié.
[5] Applicants' Record, p. 7.
[6] Applicants' Record, p. 223.
[7] Applicants Record at p. 17.
[8] Sheikh v. Canada (Minister of Employment and Immigration),[1990] 3 F.C. 238 (C.A.) at p. 244.